Summary
In Kraus v. Cleveland, 135 Ohio St. 43, it was held in substance that tokens delivered by the device for free play constituted the right to further amusement free and that, since amusement has value, additional amusement also has value.
Summary of this case from Commonwealth v. RiversOpinion
No. 27245
Decided February 1, 1939.
Municipal corporations — Ordinance licensing amusement devices, invalid — Sections 13056 and 13066, General Code — Elements of gambling involved — Chance, price and a prize — Tokens or slugs not replayed or redeemed.
CERTIFIED by the Court of Appeals of Cuyahoga county.
On March 11, 1938, the city council of Cleveland enacted an ordinance entitled "An ordinance relating to the licensing of mechanical amusement devices," and designated as Sections 2925-1 to 2925-10 of the Municipal Code of the city of Cleveland.
Section 2925-1 of the ordinance permits the licensing of "any machine or device which, as a result of a deposit of a coin, by and through an automatic or mechanical operation, affords amusement, whether accompanied by the automatic vending of any mints, candies, confections, or other commodities, and which shall by means of such operation register a score or indicate the results of such operation, whether accompanied by the return of tokens, slugs or any other evidence of the result of such operation or not."
The city law director having refused to bring suit, appellant, William J. Kraus, filed an action in the Court of Common Pleas of Cuyahoga county to enjoin the licensing of these machines and to declare the ordinance invalid. The action was based on the theory that the ordinance permits the licensing of devices which are gambling devices per se and therefore is in conflict with Sections 13056 and 13066, General Code, which sections read as follows:
"Sec. 13056. Whoever permits a game to be played for gain upon or by means of a device or machine in his house or in an out-house, booth, arbor or erection of which he has the care or possession, shall be fined not less than fifty dollars nor more than two hundred dollars."
"Sec. 13066. Whoever keeps or exhibits for gain or to win or gain money or other property, a gambling table, or faro or keno bank, or a gambling device or machine, or keeps or exhibits a billiard table for the purpose of gambling or allows it to be so used, shall be fined not less than fifty dollars nor more than five hundred dollars and. imprisoned not less than ten days nor more than ninety days, and shall give security in the sum of five hundred dollars for his good behavior for one year."
In their answer appellees alleged that the ordinance specifically prohibits the giving of prizes or rewards for the operation of mechanical amusement devices defined in the ordinance; that it prohibits the redemption for cash, merchandise or other thing of value, of any evidence of the result of operation of such machine, and that it specifically prohibits the playing of any machine except through the medium of a coin inserted therein; and that, consequently, the ordinance prohibits gambling upon the devices therein defined.
The trial court held the ordinance to be invalid and granted the injunction prayed for. On appeal to the Court of Appeals, the decision of the trial court was reversed, one judge dissenting. On motion the case was certified to this court by reason of conflict with the decision in Snyder v. City of Alliance, 41 Ohio App. 48, 179 N.E. 486.
Messrs. Harrison Marshman, Mr. Myron D. Malitz and Mr. William J. Kraus, for appellant.
Mr. Alfred Clum, director of law, Mr. Henry S. Brainard and Mr. Charles W. White, for appellees.
It may be stated as a general rule that an automatic or mechanical machine which discharges tokens or slugs of a size and shape capable of being replayed into the machine, in reward for successful play, is a gambling device per se. The types of machines described in the ordinance as licensable fall within this rule.
The language in the ordinance, "whether accompanied by the return of tokens, slugs or any other evidence of the result of such operation or not," makes the device so returning tokens or slugs licensable, though the return and the number of tokens returned and the frequency of such return be left wholly to the automatic or mechanical operation of the device. Nowhere in the ordinance is it provided that the machines be so constructed as to place the operation thereof under the control of the skill of the player. Under the terms of the ordinance, it is perfectly proper for the automatic or mechanical operation of the device, without the intervention of the skill of the player, to determine the result of the game. Where the result of a game is determined by the automatic or mechanical operation of the device upon which the game is played, and not subject to the control of the player, it is a result determined by chance.
However, for a game to constitute gambling, it must be one which is played for gain of money or a thing of value as the prize or reward.
Appellees contend, substantially, that the only thing the machine affords to the player is amusement; that the tokens emitted have no intrinsic value; that under the terms of the ordinance, the tokens may not be replayed or redeemed; that, therefore, they have no value to the player; and that anything which has no value cannot be said to constitute a prize or reward.
Under the ordinance, the mechanical operation of the device may be accompanied by a return of an indeterminate number of tokens, which of course may be used by the lucky recipient to repeat the operation of the device.
Amusement is a thing of value. Were it not so, it would not be commercialized. The less amusement one receives, the less value he receives, and the more amusement, the more value he receives. Whoever plays the device and obtains tokens therefrom receives more value for his nickel, with respect to the amount of amusement obtained, than the player who receives none at all. The player who receives ten tokens receives more value for his nickel, with respect to the amount of amusement, than the player who receives only two. The player who receives fifty tokens receives more value for his nickel, with respect to the amount of amusement, than the player who receives only ten tokens. However, the number of tokens a player may receive is wholly dependent upon chance. Consequently, the amount of amusement a player receives for his nickel, by virtue of the return of the tokens, is dependent wholly upon chance. The greater the amount of amusement received, the more valuable the prize.
The minimum amount of amusement offered in each play is that which is offered without any return of tokens. Whatever amusement is offered through the return of tokens is added amusement which a player has an uncertain chance of receiving. This added amount of amusement, the procurement of which is dependent wholly upon chance, is a thing of value ( Gaither v. Cate, 156 Md. 254, 267, 144 A. 239; State, ex rel. Manchester, v. Marvin, 211 Ia., 462, 464, 233 N.W.) 486; Painter v. State, 163 Tenn. 627, 45 S.W. [2d], 45, 81 A.L.R., 173; State v. Mint Vending Machine, 85 N.H. 22, 154 A. 224; Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S.W. [2d], 161), the lure extended by the device to the player.
As well said in the opinion in Myers v. City of Cincinnati, 128 Ohio St. 235, 190 N.E. 569: "These decisions [holding certain slot machines to be gambling devices] appear generally to be based on the theory that devices of this kind encourage and stimulate the gambling instinct of receiving something for nothing, or more for less, and are in such contravention of sound public policy as to come within laws relating to gambling and the exhibition of gambling devices. * * * Even if the slot machine involved in this case is manufactured and intended for lawful operation, its potentiality and design is such that it may be easily put to unlawful use. The regulation or prohibition of such a mechanism need not be postponed until such event occurs."
The anticipated harmful effect of the operation of such device is disclosed by the provision in the ordinance prohibiting the operation thereof by minors.
Since amusement has value, and added amusement has additional value, and since it is subject to be procured by chance without the payment of additional consideration therefor, there is involved in the game three elements of gambling, namely, chance, price and a prize.
A device which, for a coin deposited therein, returns to all players a given amount of amusement, and, in addition thereto, returns tokens as reward, the number and frequency of which return depends upon chance, is a gambling device within the meaning of Sections 13056 and 13066, General Code, and an ordinance, as the one here involved, which authorizes the licensing of such device, is in conflict with the abovementioned statutes and is invalid, notwithstanding a provision therein contained forbidding the replaying, cashing or redemption of such tokens.
The fact that Cleveland is a charter city is wholly immaterial to the issue here involved.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., DAY, ZTMMERMAN, WILLIAMS, MYERS and MATTHIAS, JJ., concur.
HART, J., not participating.